Citation Nr: 0700365
Decision Date: 01/05/07 Archive Date: 01/17/07
DOCKET NO. 04-09 714 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an effective date earlier than April 26,
2001 for the award of service connection for gastroesophageal
reflux disease (GERD).
2. Entitlement to an effective date earlier than April 26,
2001, for the award of service connection for dysthymic
disorder.
3. Entitlement to an effective date earlier than October 16,
2001, for the award of service connection for bilateral
hearing loss.
4. Entitlement to an effective date earlier than October 16,
2001, for the award of service connection for traumatic
arthritis of the left ankle.
5. Entitlement to an effective date earlier than October 16,
2001, for the award of a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran served on active duty from February 1941 to
September 1945. The veteran was prisoner-of-war (POW) from
April 11, 1944 to May 3, 1945.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2002 rating decision of the St. Louis,
Missouri, Department of Veterans Affairs (VA) Regional Office
(RO). The RO awarded service connection for GERD with
moderate hiatal hernia and assigned an effective date of 10
percent effective April 26, 2002, and awarded service
connection for dysthymic disorder, assigning a 30 percent
disability evaluation, also effective from April 26, 2002.
In a March 2003 rating decision, service connection was
granted for bilateral hearing loss and a 30 percent rating
was assigned effective April 26, 2002; service connection was
granted for traumatic arthritis of the left ankle and a 10
percent rating was assigned effective April 26, 2002; and a
TDIU was granted effective April 26, 2002.
In a February 2004 rating decision, an earlier effective date
of October 16, 2001 was granted for the service-connected
disabilities and for TDIU. In August 2005, the Board
remanded this case. In August 2006, an earlier effective
date of April 26, 2001 was granted for service connection for
GERD and dysthymic disorder.
In November 2005, correspondence was received which appears
to claim service connection for claw toe of the left foot.
The Board refers this matter to the RO for appropriate
action.
FINDINGS OF FACT
1. A claim of service connection for a gastrointestinal
disability was received in October 1950.
2. On October 16, 2001, the veteran was afforded a VA POW
examination.
3. On April 26, 2002, the RO received a VA Form 10-0114R
(VHA Fax Transmittal) from the VA Medical Center in
Fayetteville, Arkansas dated April 26, 2002 along with a VA
Form 10-0048 (Former POW Medical History) signed April 10,
2002, essentially claiming service connection for GERD,
dysthymia, bilateral hearing loss, and left ankle arthritis.
The VA Form 10-0114R contains a handwritten notation:
"Please expedite we have been on this from Oct last
year?"; another VA Form 10-0114R dated October 29, 2001 and
15 pages of medical records were also received on April 26,
2002.
4. VA liberalizing legislation established irritable bowel
syndrome, peptic ulcer, and dysthymia as presumptive POW
diseases more than one year earlier than October 2001.
5. It was not factually ascertainable that the veteran was
individually unemployable within one year prior to the
assigned effective date of October 16, 2001; there is no
earlier informal claim for a TDIU rating.
CONCLUSIONS OF LAW
1. The legal criteria for an effective date of October 29,
2000, for the award of service connection for GERD have been
met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.400, 3.114 (2006).
2. The legal criteria for an effective date of October 29,
2000, for the award of service connection for dysthymia have
been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.400, 3.114 (2006).
3. The legal criteria for an effective date earlier than
October 16, 2001, for the award of service connection for
bilateral hearing loss have not been met. 38 U.S.C.A. § 5110
(West 2002 & Supp. 2005); 38 C.F.R. § 3.400 (2006).
4. The legal criteria for an effective date earlier than
October 16, 2001, for the award of service connection for
left ankle arthritis have not been met. 38 U.S.C.A. § 5110
(West 2002 & Supp. 2005); 38 C.F.R. § 3.400 (2006).
5. The criteria for an effective date earlier than October
16, 2001 for the grant of a TDIU rating have not been met.
38 U.S.C.A. § 5110 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.151, 3.155, 3.157, 3.400 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the claimant's claim, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2005; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2006). The September 2005 VCAA
letters fully satisfied the duty to notify provisions.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The claimant was
aware that it was ultimately the claimant's responsibility to
give VA any evidence pertaining to the claim and that he
should provide any relevant evidence in his possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II).
In this case, the veteran was provided notice in accordance
with 38 U.S.C.A. § 5104. The veteran has been fully informed
of pertinent information regarding a TDIU rating and
effective dates, in the VCAA letter. The pertinent records
have been obtained and examinations conducted. There is no
dispute regarding whether the record is complete in this
case. As there is no indication that any failure on the part
of VA to provide additional notice of assistance reasonably
affects the outcome of this case, the Board finds that such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
The Board notes that in November 2005, additional evidence
was received, however, this evidence does not pertain to the
claims on appeal.
Effective Dates
In June 1946, the veteran reported his marital status. In
October 1946, he reported his dependency status. In March
1950, a VA Form 10-2731, Request for Administrative and
Adjudicative Action, was received. The reverse side of the
form indicated that no claim had been filed and the claim was
unadjudicated. In conjunction with this form, a VA Form 10-
2593 was received. This document showed that the veteran had
been seen for an undiagnosed disease of the gastrointestinal
tract, possible duodenal ulcer.
Thereafter, in June 1981, a VA Form 07-3101 verified that the
veteran was a POW from April 11, 1944 to May 3, 1945.
On October 16, 2001, the veteran was afforded POW
examinations which showed that he had dysthymic disorder,
GERD with hiatal hernia, and hearing loss.
On April 26, 2002, the RO received a VA Form 10-0114R (VHA
Fax Transmittal) from the VA Medical Center in Fayetteville,
Arkansas dated April 26, 2002 along with a VA Form 10-0048
(Former POW Medical History) signed April 10, 2002,
essentially claiming service connection for GERD, dysthymia,
bilateral hearing loss, and left ankle arthritis. The VA
Form 10-0114R contains a handwritten notation: "Please
expedite we have been on this from Oct last year?"; another
VA Form 10-0114R dated October 29, 2001 and 15 pages of
medical records were also received on April 26, 2002.
Although there is no indication when and whether the October
2001 VA Form 10-0114R was sent or received, the record does
contain a letter dated in January 2002 from the RO to the
veteran in which the RO informed the veteran that the letter
was in reference to recently received VA medical records
which were being considered as an informal claim. In the
letter, the veteran was requested to complete and return a VA
Form 21-526 (Application for Compensation and/or Pension) in
order to be considered for benefits. Such a completed form
was received April 30, 2002. Thus, the January 2002 letter
appears to be in response to a claim for VA benefits most
likely filed by the veteran in October 2001.
In a June 2002 rating decision, the RO awarded service
connection for GERD with moderate hiatal hernia and assigned
an effective date of 10 percent effective April 26, 2002.
This was the date of receipt of the April 2002 VA Form 10-
0048. Also, service connection was established for dysthymic
disorder and an evaluation of 30 percent was assigned
effective April 26, 2002.
In January 2003, VA examinations were conducted which
included diagnoses of bilateral hearing loss and degenerative
joint disease of the left ankle. The disabilities were
etiologically related to service.
In a March 2003 rating decision, service connection was
granted for bilateral hearing loss and a 30 percent rating
was assigned effective April 26, 2002; service connection was
granted for traumatic arthritis of the left ankle and a 10
percent rating was assigned effective April 26, 2002; and
TDIU was granted effective April 26, 2002.
Thereafter, subsequent VA medical records were received.
In a February 2004 rating decision, an earlier effective date
of October 16, 2001 was granted for the service-connected
disabilities and for TDIU. The POW examinations were
conducted on that date. The RO found that the examination
was an informal claim for VA benefits.
In August 2006, an earlier effective date of April 26, 2001
was granted for service connection for GERD and dysthymic
disorder. The RO indicated that the veteran's service
connection claim was received on April 26, 2002. That was
the originally assigned effective date. However, the RO
found that there was evidence of a claim filed on the date of
the October 16, 2001 POW examination, so earlier effective
dates for the service-connected disabilities and TDIU were
assigned on that date. It was currently noted that because
the veteran was a POW, his GERD and dysthymic disorder were
granted presumptively. At this juncture, the Board notes
that while GERD is not a specific presumptive disorder, it is
clear that the RO considered it as part of one of the
presumptive disorder, irritable bowel syndrome or peptic
ulcer disease. The RO stated that the pertinent criteria
allowed for a one year effective date prior to the date of
the receipt of the claim when the veteran requested a review
of his claim more than one year after the date of the
liberalizing regulation. Liberalizing legislation previously
promulgated established dysthymic disorder, peptic ulcer
disease, and irritable bowel syndrome, as lifetime
presumptive disorders for veterans with POW status.
Therefore, the RO determined that an effective date of one
year prior to the April 26, 2002 formal claim was warranted
or April 26, 2001.
The assignment of effective dates of awards is generally
governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless
specifically provided otherwise, the effective date of an
award based on an original claim for service connection
"shall be fixed in accordance with the facts found, but shall
not be earlier than the date of receipt of application
therefor." 38 U.S.C.A. § 5110(a). The implementing
regulation clarifies this to mean that the effective date of
an evaluation and an award of compensation based on an
original claim "will be the date of receipt of the claim or
the date entitlement arose, whichever is the later." 38
C.F.R. § 3.400.
With a claim for service connection, the effective date of an
award will be (1) the day following separation from active
service or the date entitlement arose if the claim is
received within one year after separation from service or (2)
the date of receipt of claim or date entitlement arose,
whichever is later. 38 C.F.R. § 3.400(b)(2)(i).
A specific claim in the form prescribed by the Secretary of
VA must be filed in order for benefits to be paid to any
individual under the laws administered by the VA. 38
U.S.C.A. § 5101(a). A "claim" is defined broadly to include
a formal or informal communication in writing requesting a
determination of entitlement or evidencing a belief in
entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v.
West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3
Vet. App. 196, 199 (1992). Any communication indicating an
intent to apply for a benefit under the laws administered by
the VA may be considered an informal claim provided it
identifies, but not necessarily with specificity, the benefit
sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at
199 (holding that 38 C.F.R. § 3.155(a) does not contain the
word "specifically," and that making such precision a
prerequisite to acceptance of a communication as an informal
claim would contravene the Court's precedents and public
policies underlying the statutory scheme). To determine when
a claim was received, the Board must review all
communications in the claims file that may be construed as an
application or claim. See Quarles v. Derwinski, 3 Vet. App.
129, 134 (1992). Upon receipt of an informal claim, if a
formal claim has not been filed, an application form will be
forwarded to the claimant for execution. If received within
one year from the date it was sent to the claimant, it will
be considered filed as of the date of receipt of the informal
claim.
With regard to the terms "application" or "claim", the Board
notes that once a formal claim for compensation has been
allowed or a formal claim for compensation disallowed for the
reason that the service-connected disability is not
compensable in degree, a report of examination or
hospitalization by VA or the uniformed services can be
accepted as an informal claim for benefits. The date of
outpatient or hospital examination or date of admission to a
VA or uniformed services hospital will be accepted as the
date of receipt of a claim. These provisions apply only when
such reports relate to examination or treatment of a
disability for which service connection has been previously
established or when a claim specifying the benefit sought is
received within one year from the date of such examination,
treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1);
see also 38 C.F.R. § 3.155(a).
38 C.F.R. § 3.155(c) provides that when a claim has been
filed which meets the requirements of 38 C.F.R. § 3.151 or 38
C.F.R. § 3.152, an informal request for increase or reopening
will be accepted as a claim.
However, according to the United States Court of Appeals for
Veterans Claims (Court), 38 C.F.R. § 3.157 only applies to a
defined group of claims. See Sears v. Principi, 16 Vet. App.
244, 249 (2002) (section 3.157 applies to a defined group of
claims, i.e., as to disability compensation, those claims for
which a report of a medical examination or hospitalization is
accepted as an informal claim for an increase of a service-
connected rating where service connection has already been
established). VA medical records cannot be accepted as
informal claims for disabilities where service connection has
not been established. The mere presence of medical evidence
does not establish intent on the part of the veteran to seek
service connection for a condition. See Brannon v. West, 12
Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377,
382 (1999) (where appellant had not been granted service
connection, mere receipt of medical records could not be
construed as informal claim). Merely seeking treatment, does
not establish a claim, to include an informal claim, for
service connection.
GERD
The veteran was separated from service in September 1945.
Within one year, the veteran reported his marital status.
However, he did not file a claim of service connection.
In March 1950, a VA Form 10-2731, Request for Administrative
and Adjudicative Action, was received. The reverse side of
the form indicated that no claim had been filed and the claim
was unadjudicated. In conjunction with this form, a VA Form
10-2593, Record of Hospitalization, was received. This
document showed that the veteran had been seen for an
undiagnosed disease of the gastrointestinal tract, possible
duodenal ulcer.
The Board notes that this document may be accepted as a claim
of service connection for a gastrointestinal disorder. The
date of this document exceeds the one-year period following
the veteran's discharge from service, and would not allow an
effective date of the day following separation from service
for the grant of service connection. 38 C.F.R. §
3.400(b)(2)(i).
There was no diagnosis of GERD at the time of the 1950 claim.
The first medical evidence of record showing a diagnosis of a
gastrointestinal disability is the veteran's POW examination
dated on October 16, 2001.
The RO has assigned an effective date of April 26, 2001.
The date of claim in this case was March 1950. The date of
entitlement was October 16, 2001, the date of the POW
examination which established that the veteran had POW-
related GERD. Thus, October 16, 2001 was the later date.
If the award of service connection is predicated on
liberalizing legislation, the effective date of the award
shall be fixed in accordance with the facts found, but shall
not be earlier than the effective date of the legislation.
In order to be eligible for a retroactive payment, the
evidence must show that the claimant met all eligibility
criteria for the liberalizing benefit on the effective date
of the legislation and that such eligibility existed
continuously from that date to the date of claim. These
provisions are applicable to original and reopened claims.
38 C.F.R. § 3.114.
In this case, the change in the legislation establishing
peptic ulcer and irritable bowel syndrome as presumptive
diseases for former POWs occurred on May 20, 1988. See also
Pub. L. No. 100-322. The Board notes that there is no
competent evidence that the veteran had irritable bowel
syndrome or a peptic ulcer as of May 20, 1988. Thus, the
veteran did not meet all eligibility requirements when the
change in legislation occurred.
It is further provided that if a claim is reviewed at the
request of the claimant more than 1 year after the effective
date of the change in the law, benefits may be authorized for
a period of 1 year prior to the date of receipt of such
request. 38 C.F.R. § 3.114. Thus, since the veteran's
initial claim for service connection for GERD, specifically,
was more than 1 year after the date of the liberalizing
regulation, any retroactive award would be limited to 1 year.
38 C.F.R. § 3.114.
Clearly the 1950 service connection claim predated the change
in the legislation. However, as previously indicated, the
record strongly suggests that a claim for VA compensation
benefits was filed on October 29, 2001, the date of the VA
Form 10-0114R. As noted above, the record does contain a
January 2002 letter from the RO to the veteran indicating
that an informal claim had been received prior to that date.
As noted above, the record indicates that a claim was filed
in October 2001. There is no claim of record actually date
stamped as received during that month. However, based on the
overall evidence, the Board accepts the date indicated on the
front of that VA Form 10-0114R, October 29, 2001, as being
the actual date that this document and the accompanying
medical records were faxed, and therefore, also received.
Thus, the date of claim for service connection for GERD is
October 29, 2001. This is the date of the request for review
of the claim of service connection, which occurred more than
1 year after the effective date of the change in the law.
Therefore, benefits may be authorized for a period of 1 year
prior to the date of receipt of such request.
Accordingly, the Board thereby finds that an effective date
of one year prior, October 29, 2000, may be assigned for the
award of service connection for GERD.
Dysthymic Disorder
The record reflects that the initial formal claim for service
connection was received via the VA Form 21-526 in April 2002.
However, as noted, a faxed claim was received on October 29,
2001, which is accepted as a request for review of the
veteran's claim for POW presumptive disorders. There is no
competent evidence of dysthymic disorder until April 2002,
the date of a VA examination.
In this case, the claim was reviewed at the request of the
claimant more than 1 year after the effective date of the
change in the law, therefore, benefits may be authorized for
a period of 1 year prior to the date of receipt of such
request. 38 C.F.R. § 3.114; see also 49 Fed. Reg. 47003
(Nov. 30, 1984). Thus, since the veteran's initial claim for
service connection for dysthymia was more than 1 year after
the date of the liberalizing regulation, any retroactive
award would be limited to 1 year. 38 C.F.R. § 3.114. One
year prior to the October 29, 2001 request is October 29,
2000.
Bilateral Hearing Loss and Traumatic Arthritis of the Left
Ankle
As noted, the accepted date of claim for VA compensation
benefits is October 29, 2001. This is the date of claim for
service connection. There is no prior claim of service
connection for bilateral hearing loss or traumatic arthritis
of the left ankle.
The Board notes that January 2003 VA examination shows that
the veteran has degenerative joint disease of the left ankle.
This is not a POW presumptive disorder. Rather post-
traumatic osteoarthritis is a POW presumptive disorder, which
the veteran is not shown to have by the record. Likewise,
bilateral hearing loss is not a POW presumptive disorder.
There is no formal or informal claim of service connection
prior to October 29, 2001.
The effective date of an award based on an original claim for
service connection "shall not be" prior to the date of
receipt of claim. The pertinent regulation states that if
the claim is not received within one year following
separation from service, then the effective date is the date
of claim or date entitlement arose, whichever is later. 38
C.F.R. § 3.400 and 3.400(b)(2)(ii).
In this case, the date of claim predated the date of
entitlement, which was the date of the January 2003 VA
examinations. The RO assigned an even earlier date, October
16, 2001, which was the date of the POW examination, and not
the date of claim. This was not proper, but the Board will
not disturb it as it does not affect payment in this case.
See 38 C.F.R. § 3.31 (2006) (payment of monetary benefits
will commence the month following the effective date of the
award). Thus, clearly, there is no earlier effective date to
be assigned, prior to the assigned date of October 16, 2001.
TDIU
The type of claim that is at issue, a TDIU rating claim,
qualifies as a claim for increased disability compensation.
The Court determined that a TDIU award is an award of
increased disability compensation for purposes of assigning
an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369
(1991).
The law provides that a total disability rating based on
individual unemployability due to one or more service-
connected disabilities may be assigned, where the schedular
rating is less than total, when the disabled person is unable
to secure or follow a substantially gainful occupation as a
result of such service-connected disabilities. 38 C.F.R.
3.340, 3.341, 4.16. If the schedular rating is less than
100 percent, the issue of unemployability must be determined
without regard to the advancing age of the veteran. 38
C.F.R. §§ 3.341(a), 4.19. If there is only one such service-
connected disability, it must be ratable at 60 percent or
more, and if there are two or more service-connected
disabilities, at least one must be rated at 40 percent or
more with a combined rating of 70 percent or more.
The effective date of an increased rating is set forth in 38
U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The
general rule with respect to effective date of an award of
increased compensation is that the effective date of award
"shall not be earlier than the date of receipt of the
application thereof." 38 U.S.C.A. § 5110(a). This statutory
provision is implemented by regulation that provides that the
effective date for an award of increased compensation will be
the date of receipt of claim or the date entitlement arose,
whichever is later. 38 C.F.R. § 3.400(o)(1).
An exception to that rule applies, however, under
circumstances where the evidence demonstrates that a
factually ascertainable increase in disability occurred
within the one-year period preceding the date of receipt of a
claim for increased compensation. If an increase in
disability occurred within one year prior to the claim, the
increase is effective as of the date the increase was
"factually ascertainable." If the increase occurred more
than one year prior to the claim, the increase is effective
the date of claim. If the increase occurred after the date
of claim, the effective date is the date of increase. 38
U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125
(1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).
Thus, determining whether an effective date assigned for an
increased rating is correct or proper under the law requires
(1) a determination of the date of the receipt of the claim
for the increased rating as well as (2) a review of all the
evidence of record to determine when an increase in
disability was "ascertainable."
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by VA. 38 U.S.C.A. § 5101(a).
As noted, VA regulations provide that any communication or
action indicating an intent to apply for one or more VA
benefits may be considered an informal claim. 38 C.F.R. §
3.155. Such informal claim must identify the benefit sought.
See Kessel v. West, 13 Vet. App. 9 (1999). VA is required to
identify and act on informal claims for benefits. 38
U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See
Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).
Upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for execution. If received within one year from the
date it was sent to the claimant, it will be considered filed
as of the date of receipt of the informal claim. An
application is defined as a formal or informal communication
in writing requesting a determination of entitlement or
evidencing a belief in entitlement to a benefit. 38 C.F.R. §
3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir.
1999) (an expressed intent to claim benefits must be in
writing in order to constitute an informal claim; an oral
inquiry does not suffice).
In addition, under 38 C.F.R. § 3.157(b)(1), an informal claim
may consist of a VA report of examination or hospitalization,
and the date of the examination or hospital admission will be
accepted as the date of receipt of a claim if such a report
relates to examination or treatment of a disability for which
service connection has previously been established. To
determine when a claim was received, the Board must review
all communications in the claims file that may be construed
as an application or claim. See Quarles v. Derwinski, 3 Vet.
App. 129, 134 (1992).
In this case, service connection for GERD and dysthymia has
been established effective October 29, 2000. The combined
rating for those two disabilities is 40 percent.
Service connection for bilateral hearing loss and traumatic
arthritis of the left ankle has been established effective
October 16, 2001. Those disabilities, combined with GERD and
dysthymia are 60 percent.
In this case, prior to October 29, 2001, the veteran did not
meet the schedular criteria for a TDIU rating. The combined
rating for all disabilities was 40 percent. However, the
Board must also consider whether there was a claim pending
for TDIU prior to October 29, 2001, for TDIU on the basis
that the veteran's service-connected disabilities combined to
preclude employment on an extraschedular basis. That is,
whether the veteran's service-connected disabilities
precluded him from engaging in substantially gainful
employment (i.e., work that is more than marginal, which
permits the individual to earn a "living wage"). Moore v.
Derwinski, 1 Vet. App. 356 (1991). For the veteran to
prevail in his claim for a total compensation rating based on
individual unemployability, the record must reflect
circumstances, apart from nonservice-connected conditions,
that place him in a different position than other veterans
who meet the basic schedular criteria. The sole fact that a
claimant is unemployed or has difficulty obtaining employment
is not enough. A high rating in itself is recognition that
the impairment makes it difficult to obtain or keep
employment. The ultimate question is whether the veteran, in
light of his service-connected disorders, is capable of
performing the physical and mental acts required by
employment, not whether he can find employment. Van Hoose v.
Brown, 4 Vet. App. 361 (1993).
The RO, has accepted the October 16, 2001 POW examination as
the claim for TDIU - the date of an examination, not the date
of a claim. As noted, the accepted date of claim is October
29, 2001.
Nevertheless, the Board must consider whether there was a
claim pending for TDIU prior October 2001. The Board finds
that there was not. There is no pertinent correspondence
dated prior to the assigned effective date of October 16,
2001. There is no correspondence in which the veteran
alleges that he was unable to work and to maintain
employment. Unemployability was not alleged. There is no
earlier correspondence which alleged unemployability which
may constitute a formal claim.
The Board must next consider if it is factually ascertainable
that an increase in disability had occurred, i.e., was a TDIU
rating warranted, within the one year prior to the claim. As
noted, service connection has been made effective for two
disabilities as of October 29, 2000. The Board must
determine if TDIU is warranted within the one year prior,
based only on dysthymia and GERD.
In this regard, there is no pertinent lay or medical evidence
for the time period in question. Thus, there is no basis for
a determination that it was factually ascertainable that an
increase in disability had occurred.
The Board finds no competent medical evidence within this
time frame that establishes that it is factually
ascertainable that an increase in disability had occurred and
that the veteran's service-connected disabilities, dysthymia
and GERD, precluded him from engaging in substantially
gainful employment. Thus, an earlier effective date prior to
October 16, 2001, for the award of a TDIU is not in order in
this case.
The preponderance of the evidence is against the claim and
there is no doubt to be resolved. 38 U.S.C.A. § 5107(b).
ORDER
An effective date of October 29, 2000, for the award of
service connection for GERD is granted, subject to the laws
and regulations governing the payment of monetary benefits.
An effective date of October 29, 2000, for the award of
service connection for dysthymia is granted, subject to the
laws and regulations governing the payment of monetary
benefits.
An effective date earlier than October 16, 2001, for the
award of service connection for bilateral hearing loss is
denied.
An effective date earlier than October 16, 2001, for the
award of service connection for left ankle arthritis is
denied.
An effective date earlier than October 16, 2001 for the grant
of a TDIU rating is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs